percentage figure, agreement violated rules and broker could not recover damages for owners’
alleged breach of contract for sale of real property); but see Littlefield v. Lamphere, 139 Vt. 77,
79, 422 A.2d 929, 931 (1980) (distinguishing Currier, and finding listing agreement complete
and proper under rule and binding on husband, who had signed listing agreement expressly
warranting that he was the owner of record of the property, even though the property was jointly
owned with his wife). We have recognized that this particular violation of the rules will always
result in a tainted or unenforceable agreement because “the requirement of a writing ensures that
the parties are fully aware of the terms of an agreement.” MacDonald, 158 Vt. at 7, 603 A.2d at
373.
¶ 25. As stated in Gall, it is critical that parties memorialize the precise terms of their
agreement before any real-estate services are performed, rather than attempting to work out the
details at a later stage when the bargaining position of the parties may have changed. “This
standardization of procedure ensures that consumers of broker services are fully informed and
are treated fairly.” Gall, 158 Vt. at 112, 605 A.2d at 844. To serve this goal, we found it fair to
have the broker bear the risk of his or her failure to obtain a written listing agreement, and to
apply “a prophylactic rule under which a broker without a written listing agreement cannot
recover a commission.” Id.; Currier, 135 Vt. at 200, 373 A.2d at 525 (stating that the law on the
question is “unequivocal; a duly executed listing agreement is the sole vehicle upon which a
broker can predicate recovery of any commission”).
¶ 26. The concerns that drove our decision in Gall are similarly implicated here. The parties
agreed that Lang would act as the real estate agent “for the listing, marketing and sale of the
Property described in this Agreement.” Lang claims that it was hired to sell a “farm business,”
but the only description of the property provided in the agreement is the street address of the real
estate. If Lang believed or intended that this agreement also cover the listing, marketing, and
sale of the Hinsdales’ business and business-related personal property, it had the burden of
stating so expressly. There is a strong public policy underlying the writing requirement set forth
in the rules, and we further that policy by refusing to allow Lang to collect a commission on the
sale of the business portion of the transaction here. See Restatement (Second) of Contracts §
178(3)(a), (b) (1981) (identifying such factors as significant in determining whether promise
should not be enforced on public policy grounds). To hold otherwise would undermine the goals
of forthrightness and consumer protection served by the rules. Equally as important, there is an
obvious and close connection between the violation and prejudice to the Hinsdales, another
important factor in weighing whether public policy should act to bar enforcement of a particular
agreement. See id. § 178(3)(d). Indeed, the lack of clarity led to this dispute. See Gall, 158 Vt.
at 112, 605 A.2d at 844 (wisdom of rule requiring written agreement illustrated by case in which
dispute was “apparently caused, at least in part, by the absence of clear terms of agreement
between the parties at the outset”).
¶ 27. Thus, looking to the factors set forth in the Restatement and relied upon in MacDonald,
we conclude that, given the absence of any specific agreement regarding the sale of the
Hinsdales’ business and business-related property, it would be unfair, inconsistent with the rules,
and contrary to public policy, to allow Lang to recover a commission on this part of the
transaction. See Rule 4.12(c)(1) (broker can only receive “the compensation provided in . . . a
written agreement signed by the firm and its client”); see also Jipac v. Silas, 174 Vt. 57, 60-61,